Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-11-26

mOQy OF LDGSe WlGDeSS6St II true, Cl6arly
shows that Stubs authorized defendant
to write the order, and the defense relied
upon this authority from Stubbs to write
the same. Held: The court erred in not
charging the Law applicable to this view
of the case, whether requested or not
The judgment is reversed and the cause
remanded. Hurt, j.
Sun Insurance Company VS. Texarkans
Foundry and Machine Works; appeal
| from Bowie. The distinct en between
! representations and warrenties in their
application to contracts OF insurance, is
that the former need not be literally and
strictly complied with, but only sub
stantislly and in those particulars which
are essential TO be disclosed TO the in
surer to enable it to determine whether
it will enter into the contract and upon
what terms. Not so with warrsnties;
for as 10 them the question Of materislity
does not arise, they entering into and
forming part of the contract StipuIe.
tions with regard to the purposes for
which the insured premises were to be
used, bear the indicia Of promissory
warranty. The policy described the bJild-,
ing as one to be occupied as
foundry and machine shops. Held: This
was contract with which the insured
must comply. The charge of the court
below made the defeat of the plaintiffs
claim contingent upon his having evil
fully deceived" the insurer, and the
building having been used fl such pur-
pose as would increase the risk. Held:
This view is not in harmony with of
Sarranty and was therefore erroneous.
Reversed and remanded. White, P J.
John Ofelvs. J. ". Mann; appeal from
Hopkins. Where an appeal bond is filed
with justice OF the peace and the Justice
fails to indorse ereOn his file mark or
approval of the same, and the same
was on motion in the county
court dismissed because of the absence
of the bill mark and approval, notwith-
standing appellant offered to prove that
the bona WAS filed in due time and ap-
proved. Held: The court erred in dis
missing the appeal. The appeal was per-
fected III SO far as it could De done by ap-
pellant, and he cannot justly be deprived
of his rights because the justice neglect
ed to place his file mark and approval on
the bond. Reversed and remanded. Will
son, j.
J. w. Mitten and Rosaliue Hamilton
VS.. the State; appeal from Navarro. Con-
viction for adultery. This case was trans
ferred from the District to the Coul ty
court, aud the certificate recited that the
term of the District court was held
in December, 1885, and that the
indictment WAS presented on the 18Th of
December, 1886. Appellant counsel
moved to dismiss the certificate of trans
fer, and pleaded to the Jurisdiction OF
the county court because the case was
filed in said court upon an illegal and in
sufficient certificate of transfer The
motion and plea were overruled and tie
ruling assigned as error. Held: Error.
The motion and plea should have been
sustained, in case the prosecution refused
or decline to amend, or substitute
valid certificate. The indictment charged
that the defendants "did then and there
unlawiuuy live together in ADULTERY,
having csrnal intercourse with each
other, and did then and there have habit
usl csrnal intercourse with each other "
Held: This does not charge the
second mode or habitual carnal
intercourse without living together, be-
cause it does not follow nor use the stat
utory words defining it; to-wit: the
words, "WithOut living together Thase
words are essential to charge the second
mode Of committing the off .nse. The
court instructed the jury that they would
find defendants guilty if either of the two
statutory modes were proven. Held:
Error. There was no sufficient allega-
ton as to the second mode # stating the
offeBse, as decided above. There is no
proof that the parties lived toge'h her, an
the evidence WAS wholly insufficient to
convict defendants unGer the fest count,
viz: living together in adultery. Re-
versed and remanded. White, P. j.
81. B. Cos on ct al. VS. Mary Dawson ct
al appeal from Rusk. Suit upon g prom
issory note secured by chsttel mortgage.
Also prayer for foreclosure Of the mort
gage. Judgment for plaintiffs. II is OBJ
jected that the mortgage was not attached
TO the petition. Held: The point is not
well taken. While it might have been
properly attached to the petition, there is
no rule re requiring this. IL was sufficiently
described in The petition and certified
copy Of the same was on file, this was
sufficient The note sued on was lost
pending the suit and it devolved upon ap-
pellees to prove its execution by appel
lants before introducing secondary evil
dence of its con ents. Held: The re-
quisite proof was furnished by the mort
gage read in evidence. It was not error,
where the regular jury had been dis
charged on prev Gus day, to lmDanel
special jury to try the cause. Affirmed.
Wilson, j
Western Union telegraph Company VS.
Ban'On & Nunnaily; appeal from Rusk.
Suit by appellee to recover damages for
he delay in the delivery IF cipher mes
sage. At the first term in which certiorari
was peri cted in this case motion was
filed to dismiss the same, and was not
submitted to the court for action thereon
until severSl terms had passed, when
upon hearing the motion was sustained
aud the certiorari dismissed. Held: At
the first term of the court to which the
certiorari is re- urnable the adverse patty
may move 10 dismiss the certiorari for
want Of sufficient Cause appearing in the
rtfi iavlt or fir want If sufficient bond.
r S Art. 81 We hold that under
this statute IL Is not suffi Gent to file
m ltion to dismiss, but the same must be
submitted for action thereon at the first
term TO which the certiorari was return
able. The court erred in Diminishing the
certiorari. Reversed and remanded.
Hurt,
James Woodson VS.. the State; from